Opinion

Borel v. City of Murrieta CA4/3

Court: California Court of Appeal
Filed: Nov 30, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.5%

The opinion

Filed 11/30/23 Borel v. City of Murrieta CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ANTHONY BOREL,

Plaintiff and Appellant, G062732

v. (Super. Ct. No. RIC2002687)

CITY OF MURRIETA, OPINION

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Riverside County,

Sunshine S. Sykes and Craig Riemer, Judges. Reversed and remanded with instructions.

Roberts Jeandron Law, Jeffrey Travis Roberts; Law Offices of Alan S.

Yockelson and Alan S. Yockelson for Plaintiff and Appellant.

Horvitz & Levy, David M. Axelrad and Robert H. Wright; Bremer Whyte

Brown & O’Meara, Tyler D. Offenhauser and Kevin B. Wheeler for Defendant and

Respondent.

INTRODUCTION

Anthony Borel was on a residential worksite in Murrieta (the City) the

summer of 2019 when the home exploded due to a natural gas leak. Borel alleged the fire

crew that responded to the report of a leak failed to establish a perimeter or evacuation

zone around the leak area and allowed people to go in and near the home. He was

amongst the people allowed to go near the home to retrieve his tools. While he was

doing this, the homeowner asked the captain on the scene if she could enter the house to

retrieve some personal items. Shortly after she entered, the home exploded and Borel

was seriously injured. He seeks to recover damages for his injuries from, among others,

the City of Murrieta.

In response to Borel’s public entity negligence claim, the City successfully

moved for summary judgment, on the ground its firefighters’ conduct at the scene was

subject to emergency services immunity under Health and Safety Code section 1799.107.1

Section 1799.107 creates immunity for public entities and emergency rescue personnel

for injuries caused when they take action to provide emergency services, so long as the

actions are not performed in bad faith or with gross negligence.

We reverse. While we agree the City can invoke section 1799.107, we

conclude there is sufficient evidence to create triable issues of material fact as to whether

the firefighters acted with gross negligence.

FACTS

On July 15, 2019, Borel was working as a solar panel installer for Horizon

Solar. That morning, he was working on the roof of a residence located at 23562

Wooden Horse Trail in Murrieta when a coworker advised an underground gas line was

All statutory references are to the Health and Safety Code unless otherwise indicated.

leaking along the side of the home. Borel got down from the roof and waited for further

instructions. His coworkers called 911 emergency services to report the leak.

The City’s fire protection district responded to the call with personnel

Captain Shad Chanley, Engineer Andy Stang, and Paramedic Randy Lopez arriving on

scene at approximately 10:57 a.m. They confirmed there was indeed gas leaking

alongside the house and they waited for personnel from Southern California Gas

company (the Gas Company) to come and remediate the problem. The Gas Company

arrived at around 11:23 a.m. and began working on the leak. To remediate it, they had to

shovel and jackhammer around the area of the leak.

Shortly thereafter, the Gas Company employees informed Captain Chanley

that he and his crew could leave the scene, indicating the risk from the gas leak was low.

Nonetheless, he decided to keep his crew at the scene “in order to continue to render aid

as needed.” However, his team did not set up a perimeter around the home or evacuate

the vicinity to keep the public away. Instead, they stayed in the vicinity and watched the

Gas Company attend to the leak.

A few minutes after noon, the owner of the house, a Mrs. Haaland, asked

Captain Chanley if she could enter her residence in order to retrieve some personal items

she needed. Captain Chanley told her she could enter. Five minutes later, the gas inside

the house ignited, causing an explosion. Unbeknownst to anyone at the scene, the gas

had migrated from the exterior to the interior of the home. Borel was standing within feet

of the garage door when the house exploded, and was blown across the street. He was

knocked unconscious and suffered a serious head injury as well as burns to his body.

Borel filed a lawsuit against the City and the Gas Company for negligence.

The City filed for summary judgment, citing section 1799.107 and arguing its firefighters

were providing emergency services at the site of the gas leak. The City further argued

There is some dispute as to how the gas leak occurred. But for purposes of this motion, Borel was

willing to concede the gas line was ruptured.

Borel could not show they acted in a grossly negligent or bad faith manner. The trial

court agreed and granted summary judgment, from which Borel now appeals.

DISCUSSION

Section 1799.107 became effective in 1984, and through it, the Legislature

sought to provide a qualified immunity to public entities and emergency rescue personnel

providing emergency services. (Id., subd. (a).) The Legislature made explicit that the

immunity was intended to encourage provision of emergency services by these entities in

order to protect the public health and safety. (Ibid.) The statute defines “‘emergency

services’” in an expansive way – the term “includes, but is not limited to, first aid and

medical services, rescue procedures and transportation, or other related activities

necessary to insure the health or safety of a person in imminent peril.” (Id., subd. (e).)

As such, the term “‘emergency rescue personnel’” includes any member of a firefighting

or fire protection entity, whether publicly or privately operated, so long as he or she is

“actually engaged in providing emergency services[.]” (Id., subd. (d).) Section

1799.107, subdivision (b) states in pertinent part that “neither a public entity nor

emergency rescue personnel shall be liable for any injury caused by an action taken by

the emergency rescue personnel acting within the scope of their employment to provide

emergency services, unless the action taken was performed in bad faith or in a grossly

negligent manner.”

Borel takes aim at the two main determinations made by the trial court.

First, its determination that immunity under section 1799.107 attached at all. Second, its

conclusion that there was no triable issue concerning gross negligence of the firefighters.

We conclude the trial court answered the first question correctly but erred as to the

second. Even if the City met its burden to show section 1799.107 was applicable, Borel

adequately raised a triable issue of material fact concerning gross negligence. The

summary judgment motion should have been denied.

I. Summary Judgment and Section 1799.107

We independently review a grant or denial of summary judgment. (See

Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 67-68). The nature of, and

requirements for, summary judgment have been discussed so many times in the case law

as to become somewhat cliched. Nevertheless, the principles bear not only repeating, but

thoughtful reflection in each case.

Summary judgment is appropriate if—and only if—the papers submitted to

the court show there is no triable issue of material fact, and the moving party is entitled to

judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Essentially, the

summary judgment procedure helps save time if “there is no issue requiring a trial as to

any fact” germane to the pleadings or necessary pursuant to the applicable law. (See

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) If the facts

germane to the action are undisputed, the court must decide the case as a matter of law.

(See Antonopoulos v. Mid-Century Ins. Co. (2021) 63 Cal.App.5th 580, 593.) But if the

court finds any issue of material fact to be tried, it can go no further; the motion must be

denied. (See D.E. Sanford Co. v. Cory Glass Etc. Co. (1948) 85 Cal.App.2d 724, 726.)

“An issue of fact becomes one of law and loses its ‘triable’ character only if the

undisputed facts leave no room for a reasonable difference of opinion.” (Atlantic Mutual

Ins. Co. v. J. Lamb, Inc. (2002) 100 Cal.App.4th 1017, 1031, italics added.)

“[F]rom commencement to conclusion, the party moving for summary

judgment bears the burden of persuasion that there is no triable issue of material fact and

that he is entitled to judgment as a matter of law.[fn] That is because of the general

principle that a party who seeks a court’s action in his favor bears the burden of

persuasion thereon. (See Evid. Code, § 500.)” (Aguilar, supra, 25 Cal.4th at p. 850.)

Where the defendant is the moving party, it may meet this burden by either showing

plaintiff cannot establish a necessary element of his case, or by establishing a complete

defense thereto. (Code Civ. Proc., § 437c, subd. (o)(2).) In this case, the City attempted

to meet its burden by doing the latter; it sought to establish it is exempt from liability due

to statutory immunity.

Unlike the burden of persuasion, the burden of production can shift on a

summary judgment motion. The moving party generally bears the initial burden of

production to show an absence of triable issues of material fact, and if successful, the

burden of production shifts to the opposing party to make a prima facie showing of the

existence of triable issues. (See Aguilar, supra, 25 Cal.4th at p. 850.) “A burden of

production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of

persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite

degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting

of a burden of persuasion. For if the moving party carries a burden of persuasion, the

opposing party can do nothing other than concede.” (Aguilar, supra, 25 Cal.4th at p.

850.)

But the burden of production can also shift where the applicable law

provides for a rebuttable presumption, as noted earlier this year by the First District Court

of Appeal in Degala v. John Stewart Co. (2023) 88 Cal.App.5th 158, 166-167 (Degala).)

Degala involved application of the Privette doctrine of workplace injury liability. In our

case, the burden shift takes place by operation of statute. Section 1799.107 explicitly

states: “For purposes of this section, it shall be presumed that the action taken when

providing emergency services was performed in good faith and without gross negligence.

This presumption shall be one affecting the burden of proof.” (Id., subd. (c).) Thus, the

City’s moving burden of production was to show section 1799.107 applies; that the

firefighters were “emergency rescue personnel acting within the scope of their

employment to provide emergency services” at the time of the explosion. (Id., subd. (b).)

If they met that burden, Borel would bear the burden to produce evidence of bad faith or

gross negligence.

Importantly though, the burden of persuasion remained with the City. And

this burden impacted how the court was to view the evidence produced in making its

determination. The court was required to consider all of the evidence, unless it sustained

objections to any particular piece of evidence, and it also had to consider all inferences

reasonably drawn from such evidence. (Aguilar, supra, 25 Cal.4th at p. 843.)

Additionally, the evidence must be viewed “in the light most favorable to . . . the

nonmoving party.” (Degala, supra, 88 Cal.App.5th at p. 167.) The nonmoving party’s

evidentiary submissions and declarations are to be given liberal construction, while the

moving party’s submissions are strictly construed. And all “evidentiary doubts or

ambiguities” must be resolved in favor of the nonmoving party. (Ibid.) Here the trial

court erred because it strictly construed the opposing evidence in granting summary

judgment.

II. Applicability of Section 1799.107

As noted above, section 1799.107 protects firefighting personnel when they

are actually engaged in providing “‘emergency services,’” a term expressly defined in the

statute to include “first aid and medical services, rescue procedures and transportation,

and other related activities necessary to insure the health or safety of a person in

imminent peril.” (Id., subd. (e).) Borel does not concede the firefighters at the scene

were providing emergency services because there was no one “in imminent peril” when

they arrived and they themselves did not believe there was any danger. Borel points to

the firefighters’ own deposition testimony, in which they admitted that, prior to the blast,

they did not believe anyone was in imminent peril. They all believed the gas from the

ruptured line was dissipating into the atmosphere rather than going inside the home.

Indeed, Lopez admitted they were not engaged in any activities to ensure the safety of

persons in imminent peril when the blast occurred.

We see it differently. While “[t]he general rule of statutory construction is

that a legislative grant of privilege or immunity is strictly construed against the

grantee[,]” (Katsaris v. Cook (1986) 180 Cal.App.3d 256, 265), the Legislature’s

language here supports application of the immunity statute. Pursuant to section 1797.70,

an “emergency” for purposes of the immunity statute “means a condition or situation in

which an individual has a need for immediate medical attention, or where the potential

for such need is perceived by emergency medical personnel or a public safety agency.”

(§ 1797.70, italics added.) Captain Chanley testified the Gas Company gave his crew

clearance to exit the scene before the explosion. Yet they decided to stick around in case

they were needed. Captain Chanley said it was his department’s practice to remain on

scene until the gas operator had shut down the gas leak. This was “in case something

happen[ed],” though he did not make clear what those “somethings” might be. This

testimony demonstrates the fire crew’s perception that their services might be required so

long as the leak remained active.

We also question whether the firefighters’ subjective belief regarding

imminent peril is determinative of whether imminent peril actually exists. Peril is a state

of being, not necessarily a state of mind. To be exact, it is “the situation or state of being

in imminent or fearful danger” or “a position of jeopardy.” (Webster’s 3d New Internat.

Dict. (1981) p. 1680.) And the term “imminent” means “ready to take place,” “near at

hand,” or “impending.” (Id. at p. 1130.) It is possible for someone to be completely

oblivious to an imminent peril. And so it was here. Just because the firefighters sensed

no danger close at hand doesn’t mean it wasn’t lurking. Based on subsequent events,

everyone in the vicinity of the home was in imminent peril that afternoon, though they

may not have known it at the time.

Additionally, the immunity applies to those providing services “necessary

to insure the health or safety of a person in imminent peril.” (§ 1799.107, subd. (e), italics

added.) “Insure” is another form of the word “ensure,” which means, among other

This definition is found within Chapter 2 of Division 2.5 of the code and “govern[s] the

provisions” of said division – including section 1799.107 – “[u]nless the context otherwise requires.” (§ 1797.50.)

things, “to make sure, certain, or safe” or to “guarantee.” (Webster’s 3d New Internat.

Dict. (1981) pp. 756.) The point in time at which the public’s health or safety is

“insured” at the scene of a gas leak is one we are ill-equipped to measure as a matter of

law. We would be loath to encourage emergency personnel to leave the scene because

they think people are probably out of harm’s way. The Legislature wisely endorsed them

staying on scene to insure safety. They must decide when it is safe for them to go.

But perhaps most glaringly, Borel’s response to the City’s requests for

admission all but establish the point he now contests. The City asked him to:

“Admit that CITY OF MURRIETA’s role at the scene of the INCIDENT was to

act to insure the health or safety of the persons in the area.” Without qualification or

objection, Borel admitted the request. “Any matter admitted in response to a request for

admission is conclusively established against the party making the admission in the

pending action, unless the court has permitted withdrawal or amendment of that

admission . . . .” (Code Civ. Proc., § 2033.410, subd. (a).)

Borel attempts to negate the evidentiary effect of his response by arguing

the statement involved a “mixed question of fact and law” inappropriate for resolution on

summary judgment. We disagree. His admission resolved any mixed question of fact, if

any ever existed on this issue.

“Code of Civil Procedure section 2033.010 allows any party to a civil

action to obtain discovery ‘by a written request that any other party to the action admit

. . . the truth of specified matters of fact, opinion relating to fact, or application of law to

fact.’ (Italics added.) Thus, ‘when a party is served with a request for admission

This is not to say we endorse blanket application of the immunity statute to every situation

involving emergency rescue personnel. We can envision clear scenarios in which emergency services are no longer

being provided, and thus, immunity would no longer attach. For instance, had the firefighters gone to eat their lunch

at a park nearby, or had they stopped into a neighbor’s house for a social call, they would no longer be providing

emergency rescue services. We do not have such a scenario here, however. Whether they were physically active

before the blast is less relevant in light of the dangers which later became tragically clear. So long as the clear

objective of the firefighters’ presence at the scene was insuring the health and safety of those in the area, they are

covered.

concerning a legal question properly raised in the pleadings he cannot object simply by

asserting that the request calls for a conclusion of law. He should make the admission if

he is able to do so and does not in good faith intend to contest the issue at trial, thereby

“setting at rest a triable issue.” [Citation.] Otherwise he should set forth in detail the

reasons why he cannot truthfully admit or deny the request. [Citation.]’ (Burke v.

Superior Court (1969) 71 Cal.2d 276, 282; see Cembrook v. Superior Court (1961) 56

Cal.2d 423, 429.)” (Joyce v. Ford Motor Co. (2011) 198 Cal.App.4th 1478, 1488-1489.)

If Borel had any concern about the nature of the question or how an

admission could be interpreted, he should have said as much in his response. Or, he

should have moved to withdraw the admission. But once established, facts admitted in

response to requests for admission may not be negated by contradictory evidence. (See

Stover v. Bruntz (2017) 12 Cal.App.5th 19, 30.)

Here, Borel admitted the fire crew’s “role” at the scene was to insure the

health and safety of persons in the area. Though often issues of duty come into play

when dealing with the “role” of public entities, the City’s question, at its heart, was

factual in nature. It goes to the purpose for the crew’s presence there; why did they come

and why would they have stayed after being told they could go? We surmise both the

City and Borel would give the same answers to those questions. Indeed, we surmise most

people would – why else would a fire crew show up at the scene of a gas leak and stick

around while work was being done if not to ensure the health and safety of residents?

Borel also argues the City, in its separate statement, misrepresented his

response by claiming he had admitted the City’s “response to the incident was to insure

the health and safety of persons imperiled by the dangers presented by the gas leak.”

(Italics added.) But this was not a misrepresentation. If the crew’s role at the scene was

to insure the health and safety of persons in the area, surely its response to the incident

was calculated to fulfill this role.

We conclude the City met its burden to bring section 1799.107 into play.

III. Gross Negligence

Once the City met its moving burden to show section 1799.107 immunity

attached, the burden of production shifted to Borel to rebut the presumption of good faith

and lack of gross negligence bestowed by subdivision (c) of the statute. We conclude he

successfully did so by raising triable issues of material fact regarding gross negligence.

We start by attempting to define the scope of “gross negligence” as the

Legislature likely meant it under section 1799.107, subdivision (c). We must try to “give

effect to the usual, ordinary import of” the phrase and construe it “in context in light of

the nature and obvious purpose of the statute” itself. (See Decker v. City of Imperial

Beach (1989) 209 Cal.App.3d 349, 354 (Decker).) As the California Supreme Court

stated when construing this very statute twenty years ago, the phrase “gross negligence”

has been defined in the case law as “‘“ the want of even scant care or an extreme

departure from the ordinary standard of conduct.”’” (Eastburn v. Regional Fire

Protection Authority (2003) 31 Cal.4th 1175, 1185-1186, quoting Franz v. Board of

Medical Quality Assurance (1982) 31 Cal.3d 124, 138 and Decker, supra, 209

Cal.App.3d at p. 358.)

Gross negligence is to be distinguished from ordinary negligence, which

“consists of a failure to exercise the degree of care in a given situation that a reasonable

person under similar circumstances would employ to protect others from harm.” (See

City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754 (City of Santa

Barbara).) When resolving motions for summary judgment, trial courts must “maintain[]

a distinction” between the two. (Id. at p. 767.)

“Generally it is a triable issue of fact whether there has been such a lack of

care as to constitute gross negligence . . . but not always.” (Decker, supra, 209

Cal.App.3d at p. 358.) Because of the statutory presumption in section 1799.107,

subdivision (c), it is Borel who must produce evidence showing gross, not ordinary,

negligence by a preponderance of the evidence. (See Evid. Code, § 115.)

The cases discussing gross negligence in the context of summary judgment

tend to appear more often than not in the sphere of primary assumption of risk, especially

following the California Supreme Court’s ruling in City of Santa Barbara, in which our

high court held a contractual release of liability for all negligence, including gross

negligence, was unenforceable. (City of Santa Barbara, supra, 41 Cal.4th at pp. 779-

780.) In order to overcome a primary assumption of risk defense, the plaintiff must show

the defendant’s negligence transcends the ordinary and drifts into the territory of gross.

In these cases, courts have most often affirmed grants of summary judgment where the

plaintiff had no evidence showing an extreme departure from the standard of care (see

Joshi v. Fitness Internat., LLC (2022) 80 Cal.App.5th 814, 828-829 [plaintiff could not

recover against health club even though it knew sauna needed light bulb replaced prior to

her trip and fall accident]; Brown v. El Dorado Union High School Dist. (2022) 76

Cal.App.5th 1003, 1029 [high school football player could not recover against school

district for traumatic brain injury suffered during game because he was warned about

injury and coaches were taking steps to monitor players during game]; Honeycutt v.

Meridian Sports Club, LLC (2014) 231 Cal.App.4th 251, 259-260 [kickboxing student

could not recover against health club when her kickboxing instructor held her leg to guide

her on proper execution of roundhouse kick]; Anderson v. Fitness Internat., LLC (2016) 4

Cal.App.5th 867, 884-885) [health club patron could not recover for injuries suffered

when he slipped on a shower floor which could be expected to be covered with soap

residue], or where the plaintiff merely showed the defendant might have done better.

(See Decker, supra, 209 Cal. App.3d at p. 361 [surfer drowned after rescue personnel

allegedly used an ineffective rescue technique]; Willhide-Michiulis v. Mammoth

Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 364-365 [skier was injured when

snowcat operator allegedly drove too fast down ski run and collided with her].)

In contrast, grants of summary judgment are often reversed where there is

evidence that could show a want of even scant care or extreme departure from the

standard of care. (See Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 857 [equestrian

student could recover against instructor who knowingly allowed her to ride a horse the

instructor knew to be unfit].) The court’s task in such cases is to determine whether,

viewing the evidence in the light most favorable to the plaintiff, the defendants’ conduct

could reasonably be seen by a jury as an extreme departure. If so, summary judgment

cannot be granted. At that point, whether or not the defendants were indeed grossly

negligent becomes a question for the jury. (See Jimenez v. 24 Hour Fitness USA, Inc.

(2015) 237 Cal.App.4th 546, 555.) We find Borel’s evidence falls into this latter

category.

There are, of course, some different considerations in the public entity

immunity context, as compared to the primary assumption of risk context. In County of

San Diego v. Superior Court (2015) 242 Cal.App.4th 460, a case involving hazardous

recreational activity immunity under Government Code section 831.7, the court refused

to apply the gross negligence exception because it found the county did not act

negligently when plaintiff was injured while using a rope swing over a ravine filled with

tree debris. The court noted the immunity existed to encourage public entities to open

their land for recreational use without fear of liability from those engaging in inherently

dangerous activities on the land. (Id. at p. 468.) By this reasoning, the county should not

be liable if parkgoers did not use due care while using the land.

In Mubanda v. City of Santa Barbara (2022) 74 Cal.App.5th 256, the court

affirmed summary judgment in favor of the city based on Government Code section

831.7 after plaintiff’s son died while paddleboarding in the harbor. (Id. at p. 259.) It

found the gross negligence exception did not apply because drowning is an inherent risk

of paddleboarding and the city had taken numerous steps to make the activity safer. They

had posted signs, maps, and tips to paddleboarders, provided training, required

paddleboarders to have certain safety equipment with them, and regularly patrolled the

harbor. (Id. at pp. 264-265.)

Our review here is informed by our conclusion section 1799.107 was

clearly designed to encourage emergency personnel to engage in life-saving activities

without fear of being held liable for injuries they cause – a point ably made by Borel’s

counsel in the trial court. But we cannot find anything in our record to support a finding

they were engaged in such active rescue activity. We therefore conclude the presumption

has been sufficiently rebutted to allow the question of whether there has been gross

negligence to go to the jury.

A. The Miller Declaration

We feel compelled first to address the centerpiece of Borel’s evidence in

opposition to summary judgment: a declaration submitted by his firefighting expert John

Miller. The parties seem to disagree on whether we should consider it in our analysis.

Miller opined that Captain Chanley, Lopez, and Stang’s conduct prior to

the explosion represented an extreme departure from the standard of care. The City

objected strenuously to the declaration on numerous grounds, including foundation,

relevance, and speculation. The trial court overruled the foundation and relevance

objections, but sustained the speculation objection because it determined Miller had not

connected the factual predicates he discussed to his proposed conclusion.5 As a result, it

granted summary judgment.

Borel did not appeal the court’s evidentiary ruling, and didn’t argue in his

opening brief it was incorrect. The City, in its responsive brief, pounced on this, and

argued any quibble with the court’s evidentiary ruling has thus been waived. The City is

correct on this. “Issues do not have a life of their own: if they are not raised or supported

by argument or citation to authority, we consider the issues waived.” (See Jones v.

Superior Court (1994) 26 Cal.App.4th 92, 99.)

We find this a strained reading of the declaration, contrary to the liberal construction we are

required to give opposing declarations.

Borel contends he waived nothing because the trial court sustained only one

of the City’s objections to the Miller declaration, as opposed to all of them. But one

sustained objection was all the City needed to get the declaration excluded. In fact, the

minute order indicates all six of the City’s objections to the Miller declaration were

sustained. We must consider the Miller declaration a nullity for purposes of our review.

B. The Undisputed Facts

However, the other evidence Borel marshaled in support of summary

judgment was enough.6 The City does not dispute that natural gas is a hazardous

material, and concedes its firefighters knew it was flammable. And even if they had not

admitted as much, this fact is so widely known as to be potentially judicially noticeable.

The evidence indicates the firefighters were not aware the gas had migrated

inside the home and believed it was dissipating into the atmosphere. As such, they did

not think bystanders or any in the vicinity required protection. They were also clearly

relying on the Gas Company to remediate the leak. But we are still left to wrestle with

the question of why they stayed on the scene. Captain Chanley indicated it was policy to

do so “in case something happen[ed].” The necessary follow-up question then is: what

did they think might “happen”? The evidence suggests the fire crew knew there was an

ongoing risk from the gas leak and knew what consequences might result. Yet they admit

they took no steps to keep people away from the danger. If you were there in case

something happened, it is hard to explain why you allowed people inside and next to the

house.

In addition to the record evidence, Borel has submitted deposition testimony from Sergio Flores,

an employee of the Gas Company, which was taken on June 6, 2022, seven days before this appeal was filed.

Obviously, the trial court never had occasion to review this document in connection with its ruling. Borel requests

judicial notice of the deposition as a “‘self-authenticating’” document under Rialto Citizens for Responsible Growth

v. City of Rialto (2012) 208 Cal.App.4th 899, 915, fn. 5 (Rialto). Unlike in Rialto, however, the City opposes

judicial notice, arguing the transcript contains hearsay. The Rialto court never explained why judicial notice of the

deposition transcript therein was appropriate. We deny the request for judicial notice.

Since most people use or own natural gas-powered grills or stoves, and are

aware that natural gas ignites easily, we do not think expert testimony is necessary for a

reasonable juror to conclude no one should have been permitted within a certain radius of

the gas leak. Even more egregious, in the eyes of a reasonable juror, could be the

decision to allow Mrs. Haaland to go back into the house to retrieve items. Captain

Chanley did not know whether the gas leak had been stopped. At the same time, he knew

Mrs. Haaland could introduce another potential ignition source through static electricity

or through misadventure. It is difficult to reconcile.

The City may argue the firefighters’ action and lack thereof represents a

mere departure from the ordinary standard of care, rather than an extreme one. That may

be a successful argument. But a reasonable jury might also conclude this was not a mere

departure from the standard of care but a complete abandonment of the standard of care –

in other words, gross negligence. We conclude the decision ought to be left to them.

DISPOSITION

The judgment is reversed and the trial court is directed to enter an order

denying the City’s motion for summary judgment, or alternatively, summary

adjudication. Appellant to recover his costs on appeal.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

SANCHEZ, J.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.